Dismissed

State of Chhattisgarh v. Devidayal Patel

Chhattisgarh HC1 Dec 2023ACQA/5/2021

Case brief

AI extract

What is this about?

In an acquittal appeal under Section 378 CrPC, the Supreme Court's principles on double presumption of innocence were applied. The High Court found the trial court's view on the prosecution evidence was plausible and, since a second possible view favors the accused, intervened to uphold the acquittal, dismissing the state's appeal.

What did the court decide?

Acquittal appeal filed by the State was dismissed, and the judgment of the trial court acquitting the accused was upheld.

State of Chhattisgarh Vs Devidayal Patel — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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- Judgment reserved on: 21 11-2023

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Judgment delivered on: 01-12-2023

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Acquittal Appeal No. 5 of 2021

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State of Chhattisgarh, Through Station House Officer, Police Station – Gandhinagar, District – Surguja (C.G.)

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---- Appellant

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Versus

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Devidayal Patel, S/o Lalan Prasad Patel, aged about 24 years, R/o Village Dhondha, Police Station – Chandoura, District – Surajpur (C.G.)

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---- Respondent

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For Appellant/State : Mr. H.S. Ahluwalia, Deputy Advocate General For Respondent : Mr. D. N. Prajapati, Advocate

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Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Ravindra Kumar Agrawal, Judge

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C.A.V. Judgment

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Per Ramesh Sinha, Chief Justice

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This acquittal appeal arises out of the judgment dated 19.12.2019 passed by the learned Special Judge [Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989], Ambikapur, District Sarguja (C.G.), in Special Sessions (Atrocities) Case No.30/2018, whereby the learned trial Court acquitted the accused/respondent of the charges under Sections 306, 376(2)(n), 417 of the Indian Penal Code (IPC), 1860 and Section 3(2)(v) of Schedule Castes and Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as ‘Act of 1989’).

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Case of the prosecution, in brief, is that there is allegation against the present accused/respondent for the commission of the offence under

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Sections 306, 376(2)(n), 417 of the Indian Penal Code, 1860 and Section 3(2)(v) of the Act of 1989 in connection with Crime No.06/2017, registered at Police Station Gandhinagar, District Sarguja (C.G.). The accused respondent had committed sexual intercourse with the prosecutrix repeatedly on the pretext of marriage with her at Village Nawaki, but the accused/respondent has performed marriage with another girl. The deceased namely Mini Toppo has consumed unknown medicine on account of alleged harassment on 10.03.2016 at 08.10 am and during her treatment she died on 12.03.2016 at 05.30 pm.

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The Sub-Inspector Nagendra Tiwari (PW-5) has lodged First Information Report to the effect that after the investigation proceedings and Panchnama under Section 174 CrPC under Merg No. 09/2016, the statements of the brother and mother of the deceased were taken, who have stated that since the deceased/victim was working as a nurse in Village Dhondhabarti hospital, the accused was having an affair with her and when the deceased/victim was transferred from Dhondhabarti to Sub Health Center village Navki, the accused used to come there also and have physical relations with her and silently the accused got married for second time. When pressured by the deceased/victim, the accused said that he could not marry her and asked her to get married somewhere else, the deceased/victim committed suicide by consuming poison due to grief and extreme mental torture. A First Information Report to this effect was registered at Gandhinagar police station on 09.01.2017. The accused was arrested. During investigation, the statement of the witnesses were recorded. After investigation, the charge sheet against the accused was presented in the concerned Court.

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The charges against the accused under Section 306, 376(2)(n), 417 IPC and Section 3(2)(v) of the Act of 1989 has been read out and explained. But, he denied the above allegations. In the trial of the accused under Section 313 CrPC, the accused stated that he is innocent and has been falsely implicated. It has been expressed that the accused will not give defence evidence. To prove their side, the prosecution examined as many as 11 witnesses and exhibited 17 documents.

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The trial Court after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused/respondent of all the charges leveled against him.

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Mr. H.S. Ahluwalia, learned Deputy Advocate General, appearing for the appellant/State, submitted that though the scope of interference with the order of acquittal is very limited but on the other hand the appellate Court is vested with wide powers of re-appreciation of the evidence in the matter. It is settled position of law that, if reappraisal of the evidence goes to show that the finding of acquittal recorded by the trial Court is unjust and perverse then the appellate Court is empowered to set aside the same and reverse the order of acquittal and convict the accused appropriately. He further submitted that the prosecution has examined the witnesses namely Dr. Santosh Kumar Singh (PW-10), Kunwar Singh Netam (PW-2), Sister in law of deceased/victim (PW-3), Smt. Seeta Bhagat (PW-4) and Sub Inspector Nagendra Tiwari (PW-5) in support of its case, which clearly establish the guilty on the part of the present accused/respondent, however, the learned Court below has not properly appreciated the

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version of the above said witnesses and acquitted the present accused/respondent, which is bad in law. The learned Court below ought to have further seen that the prosecution has proved the case beyond the reasonable doubt against the accused for the offence punishable under Section 306 of IPC and ought to have convicted him thereunder.

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On the other hand, Mr. D. N. Prajapati, learned counsel, appearing for the respondent/accused supports the impugned order and submits that the learned Trial Court has rightly acquitted the respondent. He placed reliance on judgment passed by the Hon’ble Supreme Court in the cases of Muralidhar alias Gidda and Another Vs. State of Karnataka, reported in (2014) 5 SCC 730; State of Madhya Pradesh Vs. Rajaram alis Raja, reported in (2019) 13 SCC 516 and State of Kerala and Others Vs. S. Unnikrishnan Nair and Others reported in (2015) AIR (SCW) 4814 .

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I have heard learned counsel for the parties, considered their submissions and gone through the records with utmost circumspection.

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The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal in judgment at para 25, which reads as under:-

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“25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a

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possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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Case of the prosecution is based on the evidence of PW-1 Smt. Fulsundari Bai, mother of the prosecutrix who has stated in her deposition that since the deceased/victim was working as a nurse in Village Dhondhabarti hospital, the accused was having an affair with her and when the deceased/victim was transferred from Dhondhabarti to Sub Health Center village Navki, the accused used to come there also. She further stated that about three years ago her daughter deceased/victim had come home from duty and was very sad and was sitting alone. That day the sister-in-law of the deceased/victim also came to her house. The deceased/victim had made call to the accused in the evening, then the accused said that whatever you want to do, do it, I will not come. Then her daughter had consumed poison, she was vomiting and writhing, foam was coming out of her mouth, she was lying in bed. She further stated that then she along with his middle son and the sister-in-law of the deceased/victim took the deceased/victim to Mission Hospital and admitted her. While on the way to the hospital, the deceased/victim had told her that the accused used to have physical relations on the pretex of marriage but had got married with another girl. During treatment victim

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died in the hospital. Later on, she came to know that her daughter deceased/victim had taken a loan of Rs. 4 lakh from the bank and then gave the money to the accused to buy a pickup vehicle. The accused used to take money from her daughter deceased/victim by asking her to marry her and had physical relations with her and later the accused got married for the second time, on account of which her daughter deceased/ victim committed suicide due to grief and extreme mental torture. She has denied in her cross-examination in paragraph 12 that the accused has not married any woman. She has stated that she cannot tell the details like name, address etc. of accused got married. She has stated that the marriage might have taken place at the house of the accused, of which he is not aware.

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Sister-in-law of the deceased/victim (PW-3) has stated in the Court evidence that she was married to the brother of the deceased/victim in April 2016. The deceased/victim was very close to the accused, they always used to talk. When the deceased/victim used to go to village Navki for job, the accused also used to go there. The deceased/victim used to talk to him and then told her that she loved the accused and would marry her. The accused was already married. Before consuming poison, the deceased/victim had told her on phone to call Sonu alias Devidayal, she loved him. It happened about two and a half year ago, that day at around 4-5 pm, she had gone to the house of her future husband, brother of the deceased/victim. On that day, the deceased/victim also came home and she was crying, very sad. Then she asked her, but she did not tell her anything and was crying while taking on the phone, then she went to make breakfast. She has further

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stated that when came to give breakfast to the deceased/victim she saw that deceased/victim was lying in the bed, foam was coming out of her mouth and there was medicine lying nearby in the bed. She has stated in her cross-examination in paragraph 6 that she cannot tell when the marriage of accused Devidayal took place, however, she knew that Devidayal was married in Bihar. She has also admitted that the accused Devidayal was married even before the love affair between the deceased/victim and accused Devidayal, she herself has stated that but she does not know the date of marriage. She has further stated in paragraph 7 that she knows that only one person can marry a person following Hindu religion. It has been admitted that the deceased/victim and she knew that the accused was already married, therefore, the accused cannot marry the deceased/victim. It has been admitted that even after knowing the above facts, the deceased/victim was in love with the accused.

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Smt. Sita Bhagat (PW-4) in her Court evidence has stated that the deceased/victim had told her that she and the accused liked each other and would marry each other. Once at Ambikapur, she met the accused along with the deceased/victim, where the deceased/victim introduced the accused with her. The deceased/victim had also told everyone in her house that she would marry the accused Devidayal. She has stated in her cross-examination in paragraph 7 that she cannot tell the name of the wife of accused Devidayal. She cannot tell which village his wife hails from. She has also stated that she cannot even tell when accused Devidayal and his wife got married.

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Investigating Officer, Nagendra Tiwari (PW-5) in his Court evidence has

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stated that he was posted as Sub-Inspector at Police Station Gandhinagar since 2012 to 31^st March, 2017. On 13.06.2016, a dead information was received in the Police Station Gandhinagar regarding the death of the deceased. To verify the dead information, he received the case, then on 09.01.2017, he lodged FIR against Sonu alias devidayal Patel under Section 306 of IPC. Thereafter on 11.01.2017, he went to the incident site Namnakala and in the presence of witnesses Phulsundari and Sunaina, as per their instruction, prepared a visual map of the incident site as per Ex.P/4 and in the said visual map, point No.1 has been shown as the place where the deceased has consumed poison. On 28.03.2017, he has seized the caste certificate of the deceased from Sunaina Nagwanshi in the presence of witnesses vide Ex.P-9. According to the caste certificate, the deceased belonged to Toppo Oraon caste and was a member of the Schedule Tribe. In para 5 of his cross-examination, he has admitted that in the case the incident of death of the deceased is mentioned to have happened on 12.03.2016, whereas the first information report has been lodged by him on 09.01.2017. It is correct to say that first information sheet has been filed ten months after the death of the deceased. It is correct to say that in the first information letter (Ex/P-7), the reason for the above delay has been given as late filing of the report by the informant. It is correct to say that no report has been made against the accused by any member of the family of the deceased or by any other relative. It is correct to say that on the basis of merg offence has been registered and there is no explanation regarding the delay in registering the offence on the basis of merg. In para 6 he has further admitted that he had not interrogated any

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member of the family of the deceased nor has any relative or family member given any information against the accused. It is correct to say that in the death notice (Ex.P-1) and FIR (Ex.P-7), there is no mention as to why unknown medicines were consumed by the deceased. It is correct to say that there is no mention in the death notice (Ex.P-1) and FIR (Ex.P-7) that the deceased consumed unknown medicines with intention of committing suicide or she consumed unknown medicines accidentally or by mistake.

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The Trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence led by the prosecution, the trial Court recorded the finding that in view of the facts and circumstances emerging from the evidence on record, when the deceased/victim had told her family that the accused, after asking her to marry her had established physical relations with her, he married some other girl, due to which she consumed poison out of sadness. There is no reason visible as to why the family members did not immediately tell the above matter while preparing inquest over the dead body of the deceased/victim vide Ex.P-3 or to the doctor treating her or to their society or the police station. The sister-in-law of the deceased (PW-3) has also admitted in cross-examination in paragraph 10 that whatever she told to the police and whatever statement she made in the Court, she did not tell it to anyone for about one and a half years. Then in view of the above facts, the argument of learned counsel for the accused is being strengthened and the statement made by the prosecution witnesses in their Court evidence that the

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accused used to take money from the deceased/victim by promising to marry her and the deceased/victim told that it was said that the accused, after asking her to marry her, had physical relations with her and married some other girl, due to which she consumed poison and for the said reason she was unhappy, which makes it suspicious and is not credible.

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After considering the materials available on record as well as the elaborate judgment impugned passed by the Court below and being very much conscious of the existing legal position as held in Jafarudheen (supra) that in an appeal against acquittal if two views are possible on the basis of the evidence led by the prosecution and the trial Court taking one view favored the accused, reversion of the findings of acquittal by the appellate Court taking the other possible view into consideration, is not permissible in law, we are of considered opinion that the judgment impugned acquitting the accused/ respondent by giving him benefit of doubt is just and proper and does not call for any interference.

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Accordingly, this acquittal appeal filed by the State against the acquittal of the accused/respondent from the aforesaid offences is hereby dismissed.

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Sd/Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Judgment Date : 01 December, 2023

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Chandra

State of Chhattisgarh v. Devidayal Patel

Case brief

What is this about?

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State of Chhattisgarh v. Devidayal Patel

Case brief

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